Independent (pre-trial) collection of receivables

[Бедеров Игорь Сергеевич]

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Currently, debt collection takes up to half of all security services. At least for this type of activity, it is very easy to set the performance ratings for your own safety. The criterion is the money returned to the budget of the enterprise. Unfortunately, the current situation in the legislation allows unscrupulous debtors - legal entities to easily evade responsibility and even “reset the counter” and work further as if nothing had happened. It is known that corruption can be defeated in two or three well-defined moves, but the issue of accounts receivable at the state level can be completely solved by introducing a couple of restrictions. However, this is not the topic of this article, but the subject of activity of statesmen. Someday they will come to simple solutions. We wish them good luck.

First you need to figure out how to work with receivables at the present time. The simplest example. One way or another, the company received payment on account of the further delivery of the goods or services. If this company is an unscrupulous counterparty (this is a matter of preliminary verification thereof), it will neither deliver the goods nor return the money. Moreover, turning to the Arbitration Court, you will not see your debtors in the proceedings (they will be higher than this). What will be next. And then the Arbitration Court will decide the case in the absence of the opposing party, will provide you with a writ of execution. To celebrate, you rush with this sheet to the counterparty’s bank, or to the branch of the Federal Bailiff Service. You think you get something. Do not be naive, the company has not had a dime on its accounts for a long time, and if it still has accounts, you can only get to know them promptly, since not everyone considers themselves obligated to notify tax authorities about the opening of accounts by a legal entity. We go further, at the legal address of the enterprise you will find some kind of business center in which it never was. Yes, and if you visited the office of the enterprise, there you will find that if the debtor has not yet left, then there is nothing to take from him, because the office is rented with furniture, and the computer, excuse me, the manager’s personal property and it’s impossible to arrest him . In a conversation with the CEO, if you do find him, they will politely explain to you that the company’s activities have been curtailed, that there is no money and there is no place to take it, and also that individuals (directors, owners) are not liable for the debts of their company. So, after we briefly outlined the modern realities of life in business, omitting one eternal Russian question - “who is to blame?”, ask a more urgent question - "what to do?"

The pre-trial stage of debt collection is the initial one, state and judicial authorities are not involved in it. Here, negotiations are held between the creditor and the debtor and claims between them. In almost all
agreements in the “Final Provisions” or “Responsibilities of the Parties” sections usually indicate that “Disputes under this agreement are resolved through negotiations”. This means that the pre-trial procedure for the settlement of disputes is provided for by agreement of the parties, and it is mandatory. Courts require mandatory compliance with this complaint correspondence, and compliance requirements are enshrined in law. Without a written claim for the return of the debt, the court will not accept the lawsuit and force such a claim to be presented to the debtor. In other words, until a copy of the claim appears in the case of the judge, the trial will not begin.

Independent (pre-trial) debt collection has several advantages over other methods of collection:
RAPIDITY. You can return the debt faster than if you comply with all the rules and procedural deadlines, as in the case of collection through the court. Moreover, you will reduce the ability of your debtor to hide material and commodity values from foreclosure on them.
ECONOMY. You will not spend money on lawyer services, payment of state fees, etc.
EFFICIENCY. Objectively, through negotiations it is realistic to recover a larger amount of debts than when working through the court.

All pre-trial recovery can be divided into:
SOFT, which includes mainly remote methods of working with the debtor (sending notifications, messages, phone calls);
RIGID, which includes closer contacts with the debtor (dissemination of information about his dishonesty in the media or among interested parties or associations, personal negotiations, search for the hiding debtor and his property).

So, you decided to do pre-trial debt collection. In most cases, a mess of the following kind will now begin for you: some debtors begin to hide and “run”, change phone numbers; some, although they do not avoid meeting with you, but make it clear that there is no money to pay off the debt, and you need to wait longer to pay off, they begin to “feed with breakfast”; and some, in contrast to these “evaders,” are indeed in a difficult financial situation due to objective circumstances or force majeure, but, despite this, they do not avoid responsibility, negotiate, admit their guilt and, at present, money to pay off the debt No, they propose to consider options for deferment, installment plan debt restructuring.

A successful pre-trial recovery will take place only when four necessary conditions are met:
Firstly, you need to know and understand the true reasons for the occurrence of debt;
Secondly, you need to know for yourself (and not from the debtor) the state of affairs of the debtor, his financial ability to repay the debt, the presence of financial or commodity values;
Thirdly, clearly imagine your legal position in the recovery of registered property and exactly as you planned it;
Fourth, you need to interest the debtor to pay the debt. In some way, help him in finding funds by contacting his friends, colleagues, relatives of the debtor, his professional unions, help in finding a job or an order, explain other
ways to pay off obligations.

Now let's highlight the main mistakes you can make:
- you can’t help but work with the debt, you need to make claims, call the debtor, charge him interest for the delay under the contract, etc. Just do not let the debtor go by its own accord.
- I understand that each head of the Security Council may have a couple of strong guys, but, I ask you, you should not threaten the debtor or apply physical measures to it. Nevertheless, we live in a state of law.
- You can’t appropriate the debtor’s property on your own, this is a punishable act.

After all that has been written, readers may have the feeling that it is now completely impossible to collect a debt. However, it is not. And now I’ll try to parse my statement based on a few examples.

Example No. 1
A debtor is a legal entity, the sole founder and director of which is a young citizen previously convicted and brought to administrative responsibility. During a telephone conversation, he explained that he could not
pay off debt due to lack of work at present. By the way, the company and its accounts were completely empty. In respect of the enterprise, an arbitration court issued a writ of debt collection. During a personal meeting with the director of the debtor, the latter was firmly convinced of the company regarding the recovery of debt, in the event of default, the company reserves the right to personally bring the director (as the sole decision maker) to criminal liability or under Art. 315 of the Criminal Code (for failure to comply with a decision of the arbitral tribunal), or under Art. 159 of the Criminal Code (fraud), and a significant fine for which will not cancel for him the obligation to pay the debt of the company. After such an impromptu “carrot”, a “carrot” was used. The debtor was asked to restructure his debt and, due to the fact that he is currently working as an employee, to pay the debt monthly at the expense of his salary. Otherwise, there is a risk for him to lose his job altogether when his employer becomes aware of the problems the employee has.

Example No. 2
Debtor - legal entity, director and founder are one person. Debt arose under an office lease agreement. During negotiations with the debtor, an unwillingness to pay the debt and the obvious risk of his “flight” without payment were revealed. The debtor was asked to officially terminate the lease at the beginning of the month, which he agreed to. On the evening of the same day, the premises previously rented by the debtor were opened, and the property stored there was taken for safekeeping, and an act was drawn up about this. In the course of further negotiations with the debtor, the latter was explained that, according to the explanations of the Supreme Arbitration Court, the lessor is allowed to keep the tenant’s property as collateral in case the property was left on the lessor’s territory after the lease expired, and the tenant was given sufficient time to to carry out its independent export. In the future, the lessor is allowed to sell the held property at open bidding to pay off receivables.

Example No. 3
The example is very similar to the first, but differs in the object of influence. In this example, the director of the debtor stubbornly refused to pay the debt, claiming that he was a nominal person, and all management decisions were made solely by the founders. During the study of the debtor, it was decided to influence him through relatives. The wife of the debtor at that time was in position, and this significantly played into the hands. In a conversation with her
information was provided about the debt of the enterprise of her spouse, and also the alleged further steps to recover the debt were brought, namely: bringing the debtor to criminal liability for fraud, the result of this will be a fine that does not cancel the obligation to pay the debt of the enterprise. Moreover, the director will receive this fine personally! And also, since the debtor is currently an employee, the information on the employee’s outstanding criminal record and financial problems will be communicated to his employer. During such processing, under the influence of the spouse, the debtor was forced to go to repay the debt.

Example No. 4
A debtor is a road construction company. The director does not mind paying, but there was no money, and his other debts to other counterparties are so significant that there is literally nothing to block them. The debtor is awaiting the conclusion of several state orders. Assuming how much other creditors hold this debtor by the throat, waiting for payment on contracts, we chose a different path. Assistance was provided to the debtor in organizing the sale of equipment that he could not need in future contracts. Further, while there was time, the debtor was invited to carry out certain work in our territory for a nominal payment (payment for materials).

Finally, let's try to summarize and give some tips:
If the debtor is willing to pay, but does not have the money for this, you should make sure of his financial situation. Then you should identify the presence or absence of his property to pay off debt, the possibility or impossibility of using the debtor in his business. If these opportunities are identified, they should be used first.

In cases where the debtor is not going to repay the debt, or if the state of affairs of his company does not allow him to use it in his own interests, the debt of the company should be firmly transferred, so to speak, to the debt of the director, founder, making this debt a problem of his relatives, friends, colleagues . This is very important, because until this moment the debtor will hope that the problems of the enterprise and his personal problems are completely independent things. He needs to prove that non-payment of debt will add additional difficulties to his personal life.

Information on the problems of the debtor should be actively disseminated to the outside, indicating the information of the director and founders in order to prevent the possibility of further fraudulent actions with other contractors. In the author’s practice, there has been a case of such fraud when the debtor, having gone all out, went to the sale of his building license, hiding even from his own relatives. Therefore, I always publish on the Internet the data of unscrupulous debtors, someday, when checking this counterparty, my record will pop up.

Source: Director of Security. Issue 9 (September) 2013
Link: https://www.s-director.ru/magazine/archi ... 9 / 928.html

 

[Андрей Захаров]

Here, the main thing is not to go too far with the “promises” of any troubles ... Like a criminal record, etc. .. Since if the same debtor has at least some kind of legal support and will see that they are telling a lie about the same possible criminal prosecution -this will testify to the "weakness" of the position of the person who offers him to repay the debt ... And as a consequence of this, the debt may not be repaid ... In each situation, we must proceed from realities ... Or from the principle- "We born to make a fairy tale come true .... "But this too, based on the specific situation ....

 

[Арсен]

Here, the main thing is not to go too far with the “promises” of any troubles ... Like a criminal record, etc. .. Since if the same debtor has at least some kind of legal support and will see that they are telling a lie about the same possible criminal prosecution -this will testify to the "weakness" of the position of the person who offers him to repay the debt ... And as a consequence of this, the debt may not be repaid ... In each situation, we must proceed from realities ... Or from the principle- "We born to make a fairy tale come true .... "But this too, based on the specific situation ....

I fully support, Andrey Valerievich!

 

[Арсен]

Thanks Igor!

 

[Турабян Владимир]

It smells a bit of a racket, doesn’t it, dear colleagues ?!